Death with Dignity or Criminal Act?

It had been more than seven months since Rick Miller was diagnosed with small-cell lung cancer, which had spread to his bones, kidneys and brain. He had lost his voice, endured frequent headaches and pain in his legs and he was beginning to lose the ability to clearly communicate. His doctor said he had only a few weeks to live.

"Rick basically just said, 'I want to be able to control this process, and I want to be conscious and not a burden to my family at the end, and I can't face the pain and the degradation,'" said Nora Miller, his wife of 31 years.

So late one night, with Nora, their son, Nathan, and Nathan's fiancée beside him at home, the Portland, Ore., resident ate some applesauce mixed with a lethal dose of Seconal prescribed by his doctor and soon fell into a deep sleep as they held his hands.

"It was very peaceful," Miller recalled. "It was really like his body was ready to go. There wasn't much fight left."

Rick Miller died early on Nov. 10, 1999. He was 52.

He was one of more than 200 people since 1997 who have used Oregon's Death with Dignity law, which allows physician-assisted suicide for some terminally ill patients. The future of the law -- the only one of its kind in the country -- is in question as the Bush administration seeks to overturn it, arguing before the Supreme Court today that physicians who help speed a patient's death violate federal drug laws by improperly using medication.

Jay Sekulow, chief counsel at the American Center for Law and Justice, a group founded by evangelist Pat Robertson, said today that he believes the court ultimately will decide to overturn the Oregon law. The center filed an amicus brief in the case siding with the U.S. government.

President Bush has nominated Harriet Miers to replace O'Connor, who is retiring and may be replaced before the decision. If so, the case may be reargued at a future date.

"I think the case is close," Sekulow told reporters after this morning's hearing. "This is literally a life-and-death case. And at the end of the day, the question is, does the federal government have regulatory authority to engage in these life-and-death decisions. And I think the answer in the end will be yes, but it may be yes delayed."

However, Kathryn Tucker, director of legal affairs with Compassion and Choices, which supports physician-assisted suicide and represents the plaintiff-patients in the case, told reporters after the hearing she is disturbed the government might close the door to what she says may be the most humane options for terminally ill patients to take their lives.

"There was a very perverse argument made by the federal government that patients should somehow be relegated to bring about death without the use of controlled substances, meaning by means that are not humane, are not certain, are not peaceful," Tucker said. "And that's a perverse position for our federal government to take."
Tucker also said she believes the decision will be in her favor due to the question of states' rights.

Long Debate Continues

The road to Gonzales v. Oregon was a long one. The law has been challenged since Oregon voters approved it by a 51 percent to 49 percent margin in 1994 and voted by a 60 percent to 40 percent margin against a proposal to repeal it in 1997 -- a few weeks after it went into effect following a previous injunction.

After other legal challenges and a failed measure in Congress to overturn the law, the current case stems from former Attorney General John Ashcroft's 2001 directive that doctors who prescribe the lethal drugs would be prosecuted under the Controlled Substances Act. An injunction was issued to prevent that, and the law was eventually upheld last year by a federal appeals court.

Strong opposition remains among critics -- including some doctors, religious groups and people with disabilities -- for what one physician says is a simple reason. "It's not what doctors do," said Dr. Kenneth Stevens, a radiation oncologist from Portland, Ore., and one of the founders of Physicians for Compassionate Care, which opposes the law. "Basically, it turns medicine upside down."

Among other concerns, Stevens said his group is particularly worried that once a patient has been given a prescription for lethal medicine there is less incentive for doctors to provide palliative care, and the law can be used as a quick fix economically. He also said depressed patients are not always given psychological consideration in their request for assisted suicide, despite provisions to prevent that from happening.

He cited the death of Michael P. Freeland, a lung cancer patient whose case was presented at a 2004 meeting of the American Psychiatric Association. According to records, Freeland, who had been hospitalized for depression, was released despite the knowledge that he possessed a prescription from his doctor for a lethal dose of medicine, which critics say he should not have received in the first place due to his mental state. He later died from lung cancer.

A representative from the state's Department of Human Services said in published reports that the law should not be negated because it relies on physicians to make determinations about whether patients are appropriate candidates for assisted suicide, and Freeland's two doctors had not voiced concerns.

But others contend the law provides peace of mind to very ill patients and their families, and that it can protect against abuse. "I think the safeguards work very well," said Dr. Peter Rasmussen, a medical oncologist specializing in hospice and palliative medicine from Salem, Ore. He is a respondent in the Gonzales case.

"Any patient who early in the process wants to end his life would be disqualified," Rasmussen said. "I and other doctors I don't think would participate in anything like that. The people who use the law are people who are close to death. It's true they probably die days or even weeks earlier than they would have, but that's often the point."

Limited Cases

A limited number of people have actually used the Death with Dignity law to end their lives. According to a report released in March by Oregon's Department of Human Services, about one of every 800 deaths in Oregon last year resulted from physician-assisted suicide, and 208 people had used the law overall through the end of last year.

Oregon residents 18 or older with terminal illnesses must voluntarily request physician-assisted suicide. The person must state his intentions -- once in writing and twice verbally -- and must be determined to be fully competent and certified by two physicians to have six months or less to live. He or she also must be made aware of other treatment options.

Doctors must report all prescriptions for the medications to the Department of Human Services. They and their patients are protected from prosecution, and the decision does not affect patients' health or life insurance policies. Doctors can prescribe the drugs but cannot administer them.

According to the report, 37 people in 2004 ingested medications prescribed under provisions of the law -- five fewer than in 2003, though the numbers have increased since legalization.

In addition, the report found that 40 physicians wrote a total of 60 prescriptions for lethal doses last year, the first decrease in the annual total of prescriptions written under the law. Thirty-five of the prescription recipients died after ingesting the medication, and of the 25 who did not ingest it, 13 died from their illnesses and 12 were alive at the end of the year. The other two people who died had received prescriptions in 2003.

Rasmussen said "a small number of people" ask him about assisted suicide -- 150 of his patients have seriously inquired over the years, and he estimates more than a dozen have carried out their suicides.

Arguments Center on Legal Issues, Not Moral

The question before the court is whether the attorney general has "permissibly construed" the Controlled Substances Act and its regulations to prohibit the distribution of federally controlled substances to facilitate an individual's suicide, regardless of the state law allowing it.

As opening arguments begin today, people on both sides said much is at stake, beyond just the ethics of the law.

Eli D. Stutsman, a Portland lawyer representing the physician and pharmacist in the case, said Attorney General Alberto Gonzales does not have the right under the Controlled Substances Act to criminally prosecute doctors because, unlike in medical marijuana cases, the drugs are not federally banned outright, though they are controlled.

"In Oregon, we're not using illegal substances," Stutsman said. "We're using lawful substances, and what he's doing is disagreeing with the practice of medicine."

The barbiturates prescribed for assisted suicide are considered "Schedule II" drugs under the Controlled Substances Act, which recognizes that they have accepted medical use but requires that their distribution be closely monitored by the Drug Enforcement Administration due to their high potential for abuse.

Stutsman said the attorney general's office has no history of opposing the use of these drugs. "In all other cases, the attorney general is regulating drugs because of the nature of the drug itself," he said.

But Greg Lynch, a lawyer from Bend, Ore., who wrote briefs on behalf of Physicians for Compassionate Care, said the attorney general's position is correct.

"The physician has always been seen as a healer," Lynch said, "so the attorney general said that that is not a legitimate medical purpose."

Lynch also opposes the law's provision that doctors can prescribe the medication if they are acting in "good faith," arguing that assisted suicide does not fall under the acceptable standards of care. Good faith is subjective, he said, and the provision exempts them from being prosecuted, sued or censured, which goes against medical standards.

"Good faith is a term unknown in a medical sense," he said.

'The American Way'

Supporters of physician-assisted suicide say allowing the prosecution of doctors would open a door for further government involvement in the practice of medicine.

"Inserting the federal government between a patient and a doctor is really dangerous," said Peggy Sandeen, executive director of the Death with Dignity National Center, which is representing the physicians and paying for the legal defense.

"Physicians need to be responsible for being able to give good pain management. They're educated, they know the patient's medical history," Sandeen added. "And we don't want doctors to fear DEA agents. We want them to be able to practice medicine."

Stevens, from the physicians' group opposing the law, said that federal laws already apply to doctors. "I think it deals specifically with federally controlled substances. Certainly we have a lot of federal control," he said, noting that a federal registration is required to prescribe medications. "We can't have each state exempting itself from a national standard for substances."

From Miller's standpoint, the issue is about families helping their loved ones. "The value of this law lies in the way it makes room for individual choices," she said. "Not everyone would or should do what Rick did. Everyone has a different way of approaching their own demise, and I wouldn't expect everyone else to do this.

"On the other hand, for people like Rick, it really matters that they have control over this one last part of their lives," she added. "It doesn't hurt anyone. It doesn't change how anyone would deal with their individual choices … to me, that's what the American way is all about."